Hello, I'm David Clarke and welcome to the Turcan Connell videocast on Family Law. Now, it's becoming increasingly common for people to cohabit rather than to marry. So, I'm here with Family Law specialist, Noel Ferry, who's going to talk us through some of the issues in this area. Noel, I suppose the question is what is the difference between, in legal terms, someone who gets married and a cohabitee, and what are the different rights that those people have?

Noel Ferry

Well a cohabitant in Scotland doesn't have the same rights as a married party, however, their rights were increased in 2006 by the Scottish Parliament. A married couple have the right, on divorce of separation, to seek a claim for a half share, or an equal share, of the matrimonial property that they've built up during the marriage. A cohabitant doesn't have the same automatic right, but what they are entitled to do is make a claim under the Cohabitant Legislation and that can be one of three things; they can apply for a share of any contents or furnishings that they acquired during the relationship in their home; they can apply for a share of any monies that they've put into a joint account for paying bills, etc. and the biggest claim, and the one that's causing the most controversy in Scotland in terms of claims, is that they're entitled to seek a financial claim, a capital sum, against their cohabitant for any contributions they've made during the relationship to the other, whether financial or otherwise, which have advantaged the other party of have disadvantaged themselves economically. And, if they're successful in that claim, they could be entitled to a substantial capital sum. The courts, however, are entitled to take into account offsetting of contributions made by the other party in that situation.

David Clarke

So, this would be a situation where one party has worked, or one party has looked after children. Would that be right?

Noel Ferry

That would be absolutely right. If they've given up their career, for example, to look after children, then they're financially disadvantaged. If they've contributed money to a property that they both live in and they've been disadvantaged in that respect, then they would be entitled to try and seek a claim to get some of that back.

David Clarke

Now, in the unfortunate event of a relationship ending, what can someone do to claim, is it easy to claim against your former partner?

Noel Ferry

It requires a court action. There can be negotiations before a court action, but there requires to be a court action raised within one year from the date of separation. If you don't raise a court action within that timescale then you lose the right to make a claim as a cohabitant. Whereas on divorce, if you're married, you can make claim on divorce and that can be several years down the line. So there's no timescale.

David Clarke

So, what factors does the court take into account to decide whether it's a cohabitation situation or not?

Noel Ferry

That's a good question. In a marriage situation, there's a marriage certificate, it's very easy to work out when they got together. In a cohabitation situation, that can vary quite dramatically; people live in different accommodation, stay overnight with each other and whatnot, and there have been claims where people have had their own properties separately but still claimed they were cohabitants because they stayed overnight with each other. The courts, helpfully, do have some guidance from legislation, which entitles them to take into account the duration of the relationship – there's no minimum time limit; the financial relations between the parties, and any other circumstances a court deems fit. So, there are guidelines.

David Clarke

And, coming at it from the other perspective, if you're entering into a relationship with someone, you might want to think about how you can protect some assets because, surely, they may end up going to your former partner, should you relationship end."

Noel Ferry

Absolutely, one of the easiest ways to avoid a claim on cohabitation is to enter into a cohabitation agreement before you get together, or if you're already together, you can still enter in to one after you've started the cohabitation. That will regulate who pays what during the relationship if you want or who gets what at the end of the relationship if there's a separation. The other thing to consider when you're cohabiting is if one of you dies, you've a right to make a claim on death against the cohabitant's estate if they do not have a will. So, again, you can mitigate that by having a will in place to ensure there is no claim against your estate.

David Clarke

So, it's very important to have a will in place to make sure that the assets go where you want them when you die and also to make sure that the assets might not go to your partner, or far too much to a partner, when you might want them to go elsewhere.

Noel Ferry

Absolutely, as long as there's a will in place at the moment, then a cohabitant doesn't have any right to make a claim against that estate. If one party, for example, might have built up a lot of assets during their life and they then cohabit with someone, the last thing they might want to happen is for their cohabitant to get all those assets. Perhaps they might have older children or other family they want it to go to. So, it's important they review their will situation, when they get together with a cohabitant.

David Clarke

But there is a time limit on making that claim, isn't there?

Noel Ferry

Yes. Unlike a claim on separation, which is one year from the date of separation, there must be a claim within 6 months from the date of death and, if they don't make that claim in that timescale, the cohabitant loses any rights.